Don’t fire up the bulldozers in the McKenzie Basin just yet. Land use consents for cubicle dairy farms granted by the Waitaki District Council may need to be reheard
This is not widely understood, and was only belatedly understood: all of the publicity around cubicle dairy farming proposals stems from only one aspect of the proposals.
Effluent discharge applications have now been called in by Environment Minister Nick Smith, for hearing by a board of inquiry. But other key consents for land use proceeded effectively in secret, without any public notice, and were granted by the Waitaki District Council in September and October last year.
The land use consents permit “intensive farming and earthworks”, including construction of the buildings to house the cows. Certificates of compliance were also issued for crop production, and water take infrastructure from Lake Ohau -- confirming that these would be permitted activities, not requiring consent. They are available online here (Five Rivers Ltd -- Ohau Downs; Southdown Holdings Ltd -- Glen Eyrie Downs; Williamson Holdings Ltd -- Killermont).
Waitaki District Council thought that none of this would bother anybody, because of the spot’s isolation:
In the case of these land use consents, the effects we considered were -- odour, noise, dust, rural amenity and visual effects resulting from the proposed intensive farming activity and earthworks. We deemed those effects would be no more than minor as the sites are very isolated and there is considerable separation between the sites and any established residential dwellings. There were no special circumstances in relation to the applications which would lead us to conclude that the application should be notified ...
This decision may have been incorrect, rendering the process followed by the Council unlawful, and the consents invalid. If so, they would need to be reheard.
Judicial review ensures that public decision-makers do not abuse their powers. They must follow the law that regulates their decisions. If they have misunderstood the law, or failed to give effect to it -- perhaps failing to consider everything relevant, or improperly taking into account things that are irrelevant, or following the wrong procedure -- the decision may be reviewable. One key objective of the law is to provide proper opportunity for people to participate in decision-making.
I envisage a happy day out for lawyers, arguing about whether / which judicial review grounds might be engaged in the circumstances of this case. But to kick things off, there are at least a couple of problems.
Under section 93 of the Resource Management Act, Waitaki District Council was required to publicly notify the consent applications, unless satisfied that the adverse effects of the activity on the environment would be minor. “Environment” is defined in the Act as follows:
environment includes -- (a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) amenity values; and (d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters.
By contrast, as explained on their website and reproduced above, the Council seems to have focused almost solely on whether effects on people would be minor. That’s an aspect of the definition, but ecosystems and their constituent parts, natural and physical resources, and so on, are protected in their own right.
Secondly, this conference paper by Charles Chauvel, delivered when he was a public lawyer and partner at Minter Ellison Rudd Watts, notes that in the specialist jurisdiction of the Resource Management Act, “Applications for judicial review have been of particular use in challenging decisions under s94 RMA by an authority that an application for resource consent under the RMA need not be notified.” And according to the Court of Appeal, “There is a policy evident upon a reading of Part VI of the Act, dealing with the grant of resource consents, that the process is to be public and participatory. ... Care should be taken by consent authorities before they remove a participatory right of persons who may by reason of proximity or otherwise assert an interest in the effects of the activity proposed by an applicant on the environment generally or on themselves in particular.”
You might well wonder, what were the Council planners thinking? We’ve been hearing a lot about this iconic landscape, and the nationally significant nature of the proposal: how could the effects of it be regarded by any rational person as “no more than minor”?
One possible answer is this: the consents and certificates of compliance linked to above show that on the district plan, the land in question is designated as “rural scenic” (as opposed to, for example, “outstanding landscape”). And permitted activities within such a zone already include farming activities, and in particular, the intensive farming of pigs and poultry. It has to be asked: if those two other forms of intensive farming are regarded as acceptable for the location, how is intensive dairy farming unacceptable? One may well have a problem with the district plan -- but if the rules are insufficiently robust from an environmentalist’s point of view, that is not individual farmers’ problem, when all they have done is comply with the law. And it was no doubt in the Council’s mind, in determining that these applications were not a significant departure from the norm.
However, under section 94A of the Act, when forming an opinion as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect. But this is discretionary: not in itself an answer to the necessary assessment of the effects, and a determination whether to publicly notify the applications.
The Environmental Defence Society (EDS), comprising Resource Management Act experts, has called on the government to file judicial review proceedings. The called-in applications relating to effluent discharge must surely be, from an environmental perspective, a high hurdle to clear; the government may think it has done enough. But if there was any risk at all that these consents might need to be granted, then it would be important for the government not to neglect this other aspect.
Alternatively, some other person or group who can show that their interests were adversely affected by the decision not to notify may wish to pursue it. EDS spokesperson Gary Taylor says his team is looking at judicial review potential, considers that there are good grounds, and expects to make a decision in the next few days.
Finally, I have reproduced the following quote at a little length, because I think it gives a perspective worth hearing. In 2005, farmer James Morris, whose Ben Avon station had been subject to tenure review (like Glen Eyrie Downs and Killermont), objected to the Council’s proposed revisions to “outstanding landscape” boundaries and requested some minor changes to the boundaries:
“Ben Avon” has recently completed tenure review, under which process the Crown took back 2/3 of the property in exchange for freehold title on the balance. … The Department of Conservation indicated clearly that their goals had been achieved at the end of the process. From the farming perspective we had to drop 3000 stock units or slightly under half what we had been running. The obvious expectation was that we would intensify the operations to attempt to claw back some of those lost stock units. There are small pockets of good soils on “Ben Avon” … scattered through the proposed [outstanding landscape area] … At over 2500 feet above sea level our climate frustrates many farming activities already, without having other constraints. … The areas spoken of have a power line running through the middle of them and are interspersed with hay paddocks, fences, hay barn and other signs of intensive farming and human habitation. I have farmed “Ben Avon” now for 18 years and we have not planted any shelter belts in that time. This is not through laziness, but a firm policy, that this landscape is too beautiful to have straight lines of ugly pines and conifers marching across …
Some farmers clearly do try hard to balance the tensions of operating profitably in this fragile precious area; they know and love the area, far more intimately than many other New Zealanders currently exercised about it; and in fact, the landscape is already far from “pristine”.
So the cubicle dairy farming proposals are, in a way, not a new problem -- just another aspect of a long-running debate that rumbles on in the McKenzie Basin. But the issue is one of scale, and protecting what we have left -- and in any event, given the nationally significant nature of this proposal, which nobody but the applicants seems to dispute, it is vital to have full confidence that all decisions relating to it have been properly made.
Comments (13)
Thank you for keeping chipping away at this issue, Claire. Much food for thought - this binary division of landscape into outstanding and mundane is just bizarre.
Claire,
Again that is a very detailed and thoughtful look at the consenting issues in the upper Waitaki and MacKenzie district.
I have a couple of comments on non-notification of consent applications, which may hopefully be relevant.
The old sections 93 and 94 of the RMA set two quite different thresholds for non-notification. These have been well-thrashed out in case law, particularly the Bayley v Manukau City case.
Adverse effects on 'environments', such as landscape and water quality issues, must, under s 93(1), be likely to be 'minor'.
But the s 94 test for non-notification is that adverse effects on 'persons' must be absent or negligible (or in legal jargon de minimis), as the term 'who...may be adversely affected' means that any adverse effect on a person, even a minor effect or a potential effect, or lack of certainty about adverse effects, will trigger notification.
By the way, these effects on 'persons' tend to be things like reducing reliability of flow to a downstream water consent holder, rather than adverse effects on the broader community.
So consents officers are much more focused on effects on people, than on effects on environments, as the threshold for 'people effects' is much lower. Let alone any focus on cumulative effects or whether the application broadly promotes sustainable management of resources. So the decision on non-notification is much more 'anthropocentric' than 'ecocentric' when you think about it (contrary to what Charlie Pedersen of Fed Farmers may have said a couple of years ago about the RMA and 'extreme greenies'.
That is why Waitaki District Council has written up it's decision to non-notify the applications in the language of adverse effects on people, usually meaning other holders of resource consents, rather than effects on environments.
Also, we know that on average, with some variation, 95% of all applications for resource consents are granted without any public notification. For a council consents officer, processing non-notified consent applications is bread and butter. So the job at hand most of the time expected by the boss is justifying non-notification of applications. This reverses the onus of proof which sections 93 and 94 place on the applicant onto the consent officer!
Note that Charles Chauvel's paper mentions succesful judicial reviews of s94 non-notification decisions (effects on people) rather than reviews of s 93 decisions . From my experiences, legal processes tend to favour 'rights of people' over rights of nature.
Good luck to EDS if they lodge a judicial review of Waitaki DIstrict Council's decision to grant the land use consents without notification. I think it would be unlikely to succeed. The judge would probably note that the district land use permits can't be exercised until the regional discharge and water permits are granted. And even if the High Court found an error of law or 'unreasonableness' it would just send the applications back to Waitaki District Council to try again. The probability of the Government filing a judicial review? Zero chance, I'm afraid, and I would say that would have been the case under Labour as well.
The probability of the Government filing a judicial review? Zero chance, I'm afraid ...
For completeness, I note that I was a bit lax above - EDS was calling on the Minister for the Environment specifically, not "the government" as a whole. But I agree with your comment, and am not wholly convinced anyway that it is the government's job to do this.
And thank you, again, for teasing out the issues so much more expertly. It'll be interesting to see where EDS gets to; Gary Taylor sounds confident.
I should also note that, in addition to the non-notification, EDS has another plank to the argument: they consider that the Council has misinterpreted the scope of permitted activities under the district plan.
Interesting to learn that people have such precedence over place in ERA considerations. In many cases that may seem reasonable to most, although it clearly puts conservation ideals in second place.
The question it raises for me is how we draw the line between 'rural scenic' and 'outstanding landscape'. You'd imagine that the more outstanding the landscape, the less important the people part of the equation should become. It should be vauled in its own right.
But, as Judy's getting at, where do you draw a line? How do you define and rank natural beauty?
Interesting to learn that people have such precedence over place in ERA considerations. In many cases that may seem reasonable to most, although it clearly puts conservation ideals in second place.
I am not sure at all that this was what Parliament would have intended, or what the scheme of the Act actually supports - is this an approach the courts have endorsed, Simon, in the RMA cases you referred to, or were you describing what tends to happen in practice (which is how I read your comment)? Of course, it's a circular question: if I was right about the Act, then consents officers would surely have been pulled up on their practice before now.
Worth noting that both Simon and I are referring to the 2005 version of the Act, which is the relevant one for present purposes, because the applications predated 1 October 2009. Sections 93, 94, et al were repealed from 1 October, and replaced with this (section 95A, plus some related sections).
The new scheme draws a pretty clear distinction between the public notification requirement, which is an environment-focused test (although there is a special circumstances discretion, which I would hope might be invoked in a case such as the present), plus a limited notification option for "affected persons". The consent authority decides who are affected persons - which I should think would tend to confirm, in future practice, this aspect of Simon's comment:
By the way, these effects on 'persons' tend to be things like reducing reliability of flow to a downstream water consent holder, rather than adverse effects on the broader community.
Claire,
Yes, in actual RMA practice, people have precedence over the biophysical environment. Thats the case for notification decisions (which are of course the original subject of Claire's post) and in decisions about the purpose of the RMA and decisions whether to grant or decline consent applications. The notification case law such as Bayley and Discount Brands is pretty much just about the mechanics of notification decisions. And they are s94 issues where the agrieved party was not notified.
In terms of the purpose of the RMA, no, I don't think that is what Parliament intended and in my opinion it is fairly aguable that current practice is not what the scheme of the RMA actually sets out. SImon Upton was quite clear that 'sustainable management' in the sense of 'bio-physical bottom-lines' was the 'over-arching' principle in the RMA. He has also argued that he is disappointed that the courts have adopted the 'broad overall judgement' approach to 'sustainable management' (in preference to the 'bottom line') and that was exactly what his review group was trying to avoid.
Have you read the RMA page on Wikipedia? It sets out the issues quite well. I may have contributed the odd edit.
http://en.wikipedia.org/wiki/Resource_Management_Act_1991
I did the Ministry for the Environment RMA decision-makers program two years ago and it teachs new commissioners and councillors that RMA decisions are all about 'broad overall judgements'. In my view, this is just a lazy surrender to principles of administrative law - 'each case on its merits'.
Yes the replacement notification wording was specifically written recognising that notifications were mainly caused by s94 due to the wording 'any adverse effect that may happen to a person'.
I did read the other day on the Environment Canterbury that they had considered the new notification sections but would not be changing their definitions of what constitutes an adversely affected bore owner. (The effect being the localised depression of groundwater levels in existing bores from the 'drawdown cone' of a new applicant. So that sounds like business as usual.
"I did read the other day on the Environment Canterbury website"
Sorry, missing word!
In terms of the purpose of the RMA, no, I don't think that is what Parliament intended and in my opinion it is fairly aguable that current practice is not what the scheme of the RMA actually sets out.
Quite. So ... an arguable ground for challenge, wouldn't you say? Given the circumstances of this case, I'd have a crack at making something of it.
As an aside - just in case anyone in the country might be starting to wonder whether the RMA and tenure review processes are either (a) flawed in the balance that the legislation strikes, or (b) being undermined in practice - we have this from Kiwiblog yesterday: http://www.kiwiblog.co.nz/2010/02/nz_15th_of_163_for_environmental_health.html
New Zealand's score on the Yale/Colombia Environment Protection Index. Sounds like that deserves it's own post.
I made a graph of the NZ scores. It is here http://commons.wikimedia.org/wiki/File:Nzepi-v4.png
NZ seems to score worst on climate change issues: carbon intensity, climate change policy and subsidies to agriculture.
Sounds like that deserves it's own post ...
Maybe! ... although one of the key points at least can be summed up in a line. Where we score well, it has nothing to do with "environment protection", as opposed to the fact that there aren't many of us.
Whereas on the environment protection front:
Documents released under the Official Information Act reveal DOC is pushing for less land than it previously sought under the tenure review process on some Mackenzie Country farms because it cannot afford to manage it.
In the documents, which relate to five high-country stations in the Mackenzie Basin, DOC high-country tenure review manager Mike Clare tells staff in an email: "We cannot afford to take on new lands with high ongoing management costs so therefore we need to take a pragmatic approach to our position in the high country in light of today's environment."
The documents cite "statements made by ministers", "diminishing funding" and the Government's new high-country policies as reasons for the changed stance.
Clare's emailed comments came after Land Information New Zealand (Linz), which manages the tenure review process, ignored DOC's previous conservation recommendations for the farms.
While that was disappointing, Clare said: "We are working in different times. The advice provided (for tenure review properties) goes for the core values that we can easily defend and shows that we are working within the Government's policies, which is what is now required."
I am sure that straight after the 2008 general election the Director-General or one of the Regional Managers would have sent out a memo to all DOC area offices that said "Be extra nice to farmers" .
I have another 'wrinkle' in the cubicle-dairying story. The five cubicle/dairy consents decided by the Board of Inquiry will have a different appeal status from the water permits decided by Environment Canterbury's hearing panel. The water permits, when decided, may be appealed by submitters (or the applicant) in the usual way (s 120 RMA) to the Environment Court. However, a decision of a Board of Inquiry can only appealled on a point of law to the High Court. See <a href="http://www.legislation.govt.nz/act/public/1991/0069/latest/link.aspx?search=ts_act_resource+management+act_resel&p=1&id=DLM2417792#DLM2417792">Section 149V</a> of the RMA.
I wonder if people who submitted on the applications and who urged Nick Smith to call in the cubicle applications realised that as submitters they would lose their right of appeal to the Environment Court?
Cubicle farming goes to court: EDS will next week file proceedings in the High Court at Timaru. http://www.scoop.co.nz/stories/PO1002/S00304.htm
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